SDCL 25-1-1, SDCL 25-1-38, Article 21 § 9 of the South Dakota Constitution, and any other provision of state law that precludes people from marrying or refuses to recognize an existing marriage, solely because the individuals are of the same gender are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2015 WL 144567, at *11 (D.S.D. Jan. 12, 2015). The Court further ordered that, “defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” Id.

The Court, over Plaintiffs’ objections, also ordered that, “the effects of [the] judgment will be stayed until the judgment is final.” Id. While Plaintiffs believe they have already satisfied their obligations pursuant to Rule 8 of the Federal Rules of Appellate Procedure and could make the above-captioned motion at the Eighth Circuit Court of Appeals, they seek this Court’s reconsideration in light of recent decisions by the U.S. Supreme Court.

In its Order granting Plaintiffs’ Motion for Summary Judgment, the Court did not consider that on December 20, 2014, the Supreme Court of the United States denied the State of Florida’s request for a stay of a preliminary injunction enjoining the enforcement of Florida’s exclusion of same-sex couples in marriage while the litigation and appeals process continue. See Armstrong v. Brenner, 135 S. Ct. 890 (2014).

Four days after this Court entered and stayed judgment in Plaintiffs’ favor, the Supreme Court granted petitions for writ of certiorari in four cases that raise the very same issues presented in this case—whether a State must allow same-sex couples to marry and whether a State must recognize such marriages performed in other jurisdictions. See DeBoer v. Synder, No. 14-571, 2015 WL 213650, at *1 (U.S. Jan. 16, 2015); Bourke v. Beshear, No. 14-574, 2015 WL 213651, at *1 (U.S. Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, 2015 WL 213646, at *1 (U.S. Jan. 16, 2015); Tanco v. Haslam, No. 14-562, 2015 WL 213648, at *1 (U.S. Jan. 16, 2015).

Most significantly, yesterday—February 9, 2015—the Supreme Court denied a request by the State of Alabama to stay the judgment of the Untied States District Court for the Southern District of Alabama, which had, on January 23, 2015, held that Alabama’s exclusion of same-sex couples from marriage violates the Fourteenth Amendment. Strange v. Searcy, No. 14A840, 2015 WL 505563, at *1 (U.S. Feb. 9, 2015).

Since October 2014, the Supreme Court has repeatedly and consistently denied motions to stay lower court decisions that struck down state bans on marriage equality as unconstitutional. Strange, 2015 WL 505563, at *1. The Supreme Court’s order in Strange indicates that the grant of review in DeBoer, et al, has not changed the Court’s conclusions that such stays are not necessary. To the extent that this Court’s entry of stay was premised on the fact that the Eighth Circuit Court of Appeals and/or the U.S. Supreme Court had not yet ruled on the constitutionality of state marriage equality bans, the Supreme Court’s post-certiorari refusal to grant a stay in the Alabama case demonstrates that the continued stay of the judgment in this matter is no longer appropriate.

When a party seeks a stay pending appeal, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Vill of Gambell, 480 U.S. 531, 542 (1987). Here, while Defendants have not shown that South Dakota would suffer any harm in the absence of a stay, the challenged laws are continuing to cause serious and irreparable harm to Plaintiffs and other same-sex couples and their children every day that the bans remain in effect. In addition, the stay on judgment is causing continued insecurity, vulnerability, and stigma. The purpose of marriage is, in large part, to provide security and protection in the face of anticipated and unanticipated hardships and crises—e.g., in the face of death, aging, illness, accidents, incapacity, and the vicissitudes of life. Indeed, Plaintiffs in this case have dealt with such issues during the pendency of this litigation. This harm is not speculative, but immediate and real.

This Court has recognized that the denial of marriage to Plaintiffs and other loving and committed same-sex couples is the deprivation of fundamental rights guaranteed by the United States Constitution. Rosenbrahn, 2015 WL 144567, at *10. Under well-settled law, any deprivation of constitutional rights, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

Defendants have not demonstrated a likelihood of success on the merits and have offered no evidence that they will suffer any harm—much less irreparable harm—if this Court’s judgment is in effect while the appeal is pending. Defendants have identified no meaningful burden to the State of South Dakota or its agencies or political subdivisions that would arise if the State is required to issue marriage license to same-sex couples and recognize such marriages performed in other jurisdictions while the appeal is pending in this matter.

Defendants cannot argue that enjoining the enforcement of a state law is in itself a form of irreparable injury to the State. That is equally true of any case in which a court permanently enjoins a state law because the law is unconstitutional. Such arguments, taken to their conclusion, would mean that a permanent injunction can never be granted in a constitutional challenge without being stayed pending appeal. That manifestly is not the law. See Nken v. Holder, 556 U.S. 418, 433 (2009) (“A stay is not a matter of right.”)

It cannot be argued that in the absence of a stay, South Dakota’s issuance of marriage licenses to same-sex couples would result in uncertainty concerning the validity of those marriages. There will be no uncertainty, as the law is clear that marriages validly entered into pursuant to a district court’s order while appeal is pending remain valid regardless of the appeals’ outcome. See Caspar v. Snyder, No. 14-CV-11499, __ F. Supp. 3d __, 2015 WL 224741, *27; Evans v. Utah, No. 2:14-CV-55-DAK, 2014 WL 2048343, at *17 (D. Utah May 19, 2014).

While this Court (in its Order dated January 12, 2015) discussed the factors traditionally weighed to determine whether a stay on judgment should entered, it did not have the benefit of the Supreme Court’s most recent action in Strange. With that backdrop, it is fundamentally unfair and logically inconsistent that same-sex couples in Florida and Alabama (among other states) can marry and have their marriages recognized while the Supreme Court considers the very issues decided by this Court, but families in South Dakota must continue to suffer irreparable harm and constitutional violation. Thus, this Court’s conclusion that the public interest weighs in favor of a stay on judgment must be reconsidered and the stay on judgment immediately vacated. “It is always in the public interest to prevent the violation of a party’s constitutional rights.” G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).

The Plaintiffs and same-sex couples across South Dakota have waited years—in many cases, decades—to be treated equally in accordance with the Constitution. They should not have to one more day. Accordingly, Plaintiffs respectfully request action on this Motion by this Court within one week.